Dominion Voting Systems’ $1.6-billion defamation suit against Fox News has been settled, moments before going to trial in Delaware. The trial judge had already sanctioned Fox for allegedly hiding the ball during discovery. That was one more bad omen for Rupert Murdoch’s TV colossus. Fox had aired debunked claims that Dominion’s voting machines had helped rig the 2020 election against Donald Trump. The judge had stated bluntly that the falsity of those claims was “crystal clear.”
Under the circumstances, the settlement was not much of a shock. Fox had already settled a defamation suit brought by a Venezuelan businessman who had been identified as part of an election-rigging plot. The last-minute delay of the trial’s start was also a signal that a settlement was on the way.
Fox no doubt hoped it would be shielded by the Supreme Court’s 1964 New York Times v. Sullivan decision. Under Sullivan a news organization isn’t liable for any statement made about a public figure, even if untrue and defamatory, unless that statement was made with “actual malice” – that is, knowingly false or made with a “reckless disregard” for the truth. After 1964, SCOTUS extended the shield to coverage of all public figures and of private citizens who knowingly insert themselves into the public arena.
Fox’s reliance on Sullivan seems ironic, since Donald Trump and various other conservatives have made it clear that they wish it were a whole lot easier to sue people they don’t like. (See, for example, Trump’s recent $500-million suit against his old fixer, Michael Cohen.) And since then, at Governor Ron DeSantis’ urging, Florida legislators are considering legislation that would pare back the Sullivan protection.
But, as Ken Bensinger reports in The New York Times, right-wing media have grown alarmed about the weakening legislation, too. Bensinger writes that “forces traditionally aligned with Mr. DeSantis have in recent weeks begun raising alarm. They are warning that the governor and his G.O.P. allies did not take into account how the [proposed] bills would affect right-wing reporters and commentators, not just the mainstream outlets that have become punching bags for Republican politicians.”
The Florida bill would clearly be unconstitutional, at least as the Supreme Court has interpreted the Constitution for decades. But if it passes, and a Florida court applies it, this particular piece of anti-woke legislation will give SCOTUS an opportunity to reconsider Sullivan, which a majority of the justices may be glad to take. Two justices, Neil Gorsuch and Clarence Thomas, have already indicated that they’d probably take it. Both have expressed their doubts about Sullivan. Thomas thinks we should look back to what the Founders supposedly thought in 1791.
Gorsuch is tethered more firmly to reality, though the conclusions he draws are not more convincing. Where Thomas thinks the past couple of hundred years shouldn’t affect our interpretation of the First Amendment, Gorsuch thinks the past six decades probably should. “Since 1964,” Gorsuch has written, “our Nation’s media landscape has shifted in ways few could have foreseen. Back then, building printing presses and amassing newspaper distribution networks demanded significant investment and expertise. Broadcasting required licenses for limited airwaves and access to highly specialized equipment. Comparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers.”
But, Gorsuch continues, “'[t]he liberty of the press’ has never been ‘confined to newspapers and periodicals’; it has always ’comprehend[ed] every sort of publication which affords a vehicle of information and opinion.’”
That media universe has expanded beyond what anyone envisioned in the 1960s. “Thanks to revolutions in technology,” Gorsuch observes, “today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world. The effect of these technological changes on our nation’s media may be hard to overstate. Large numbers of newspapers and periodicals have failed. Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’”
As a result, Gorsuch continues, “[i]n many ways, it seems we have arrived in a world that dissenters proposed but majorities rejected in the Sullivan line of cases—one in which, ‘voluntarily or not, we are all public [figures] to some degree.’ . . . Now, private citizens can become ‘public figures’ on social media overnight. Individuals can be deemed ‘famous’ because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most.”
So far these observations by Gorsuch make sense but when he extends them to the particulars of Sullivan, his reasoning becomes disconcerting. What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” Gorsuch writes, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable. It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’ Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of . . . defamatory falsehoods and misinformation.”
He’s right. In fact, he’s saying things about the media that devout believers in press freedom who happen to despise Gorsuch also say. The hard question is what we should do about it? Removing the Sullivan shield from The New York Times may be what Trump and his toadies have in mind, but it shouldn’t be the answer.
The Sullivan court — in its very different time — evidently wanted to protect news organizations that were trying to get things right but inevitably sometimes got them wrong. That’s not the modern media universe Gorsuch describes.
Gorsuch seems to confuse quality with quantity. Yes, there are more opinions flying around. But many of them are rants based on other rants. Tuning in to the resulting debate is like eavesdropping in a tavern. Real journalism arguably needs protection more than ever.
When Gorsuch writes “ignorance is bliss,” he’s presumably referring to the delusional statements for which the Internet is famous. Some of what people find online is no doubt sincerely delusional; some are merely cynical efforts to manipulate the sincerely deluded into handing over votes and dollars (as Fox seems to have done – very successfully – in the world of cable news.)
The Sullivan court and Gorsuch both refer to the virtues of “robust debate.” That presupposes that people actually read or listen to conflicting points of view. But the big Internet platforms’ bread and butter – or caviar and truffles – is based on algorithms that point people toward opinions and “facts” they probably agree with. Cases challenging that use of algorithms are currently in the courts, including the Supreme Court. Arguably, the algorithms do little to advance First Amendment ideals of “robust debate” and may be more likely to undercut them.
So what to do? Maybe we need a two-or-more-tiered system in which different kinds of public speech get different levels of protection. That would solve a number of problems, but it would also create others. Just exactly which kind of speech should get more or less protection? Where does disinformation start? Who decides? The current Congress? The current Supreme Court?
And is the system so broke that Sullivan requires fixing? Once you start messing with what has been considered for more than half a century to be basic First Amendment protection, many of us get uneasy. The Roe precedent lasted almost that long, but this is not a Court majority that feels overly burdened by stare decisis (respect for legal precedents). Does anyone really trust this Supreme Court to reexamine other precedents? Anyone?